Himachal Pradesh High Court
Himachal Road Transport Corporation vs Saroj Devi And Ors. on 31 December, 2001
Equivalent citations: 2002ACJ1146
Author: Arun Kumar Goel
Bench: Lokeshwar Singh Panta, Arun Kumar Goel
JUDGMENT Arun Kumar Goel, J.
1. It is proposed to dispose of all these appeals and cross-objections by a common judgment as they have arisen out of the same accident and were disposed of by a common award passed by the Tribunal below.
2. Facts regarding which learned Counsel for the parties were not at variance at the time of hearing of these appeals are that the bus bearing registration No. HPN 984 was on its way from Renukaji to Nahan town on 21.7.1993. Respondent Ram Par-kash was its driver. Himachal Road Transport Corporation (H.R.T.C. for short), was the owner of this bus. When it reached near Do-Sardka at about 12.45 p.m. on Nahan Road, it met with an accident. Claimants in all these cases (as well as other cases which were filed and settled before the Tribunal below), pleaded that this was due to excessive speed at which the bus was being driven. And also because driver lost control. This resulted in bus going off the road. It rolled down and fell 100 ft. below the road. A number of persons died. Those who survived, sustained injuries mostly grievous in nature. Numerous petitions were filed as per provisions of Motor Vehicles Act, 1988 claiming compensation. All these cases were consolidated with Claim Petition No. 23-N/2 of 1993, Indra Devi v. H.R.T.C, wherein evidence was recorded. Record of this case was summoned with a view to decide the present appeals and cross-objections. Case file shows that during the pendency of the claim petitions, some of those were compromised and the appellant Corporation paid compensation to some of the claimants.
3. In all these cases after conclusion of the trial, the learned Tribunal below has awarded compensation. This has been questioned in these appeals by H.R.T.C. In two of the appeals, as noticed herein above, cross-objections have been filed for enhancement of compensation, as awarded by the learned Tribunal below.
4. Before proceeding further with these cases we may notice that the stand of the appellant Corporation was vague and evasive in its reply filed to the claim petition before the Tribunal below. Factum of accident was admitted, but nothing was said whether it was result of rash or negligent driving or otherwise.
5. On the other hand, the respondent driver pleaded that he was not driving the bus rashly and negligently. As such the accident was not the consequence of his alleged such driving. In his words, "as a matter of fact brakes and steering of the bus all of a sudden failed resulting in accident". On the basis of the aforesaid stand of the parties, compensation was awarded.
6. Mr. Chandel, learned Counsel appearing for the H.R.T.C., urged that there was no rash or negligent driving which can be attributed to the driver in causing accident in question. According to him there is overwhelming reliable evidence to hold that the accident was due to unforeseen circumstances as is evident from the statement of Ram Parkash, driver, who had appeared as RW 1 in this case. He was the best witness to have spoken about the accident, being on the wheel at the time of accident. In addition to this, he also urged that the compensation awarded is highly excessive, therefore, by allowing these appeals, even if it be assumed for the sake of argument that the accident was due to rash and negligent driving, still compensation assessed cannot be sustained and is liable to be substantially reduced.
7. On the other hand, learned Counsel for the respondents-claimants vehemently urged that there is overwhelming oral and documentary evidence which leads to one and only irresistible conclusion that the accident in question was the outcome of rash and negligent driving on the part of the driver, RW 1. Such evidence, firstly, has not been controverted and secondly it inspires confidence being reliable and acceptable. As such this evidence needs to be accepted and consequently while dismissing the appeals of the appellant, compensation is liable to be enhanced together with interest. Even in cases where cross-objections have not been filed, in a given case with a view to do justice between the parties, to assess the compensation which is just in the opinion of the court under Section 168 of the Motor Vehicles Act. According to him in all these cases while enhancing the compensation this Court may exercise its jurisdiction under Order 41, Rule 33, Civil Procedure Code.
8. So far last submission is concerned, Mr. Chandel, learned Counsel for the appellant submitted that this plea is not available to the respondents-claimants, who had a right to either file cross-appeal or at least cross-objections. Those having been filed only in two cases, claimants are precluded from making this prayer. As such this is not a fit case for exercising powers vested under Order 41, Rule 33, Civil Procedure Code for considering the prayer of respondent-claimants. So before proceeding further with other contentions, it is necessary to go into the question of applicability of Order 41, Rule 33 to the proceedings under Motor Vehicles Act.
9. Under Order 41, Rule 33, Civil Procedure Code, a court has the power to pass a decree and make any order which has to be passed or made. Such power is to be exercised by the court notwithstanding that the appeal is against a part only of the decree and may be exercised in favour of all or any of the respondents or parties although such respondents or parties having not filed the appeal or objections.
10. A Constitution Bench in Panna Lal v. State of Bombay AIR 1963 SC 1516, observed in the context of Order 41, Rule 33 as under:
(12) Even a bare reading of Order 41, Rule 33 is sufficient to convince anyone that the wide wording, was intended to empower the appellate court to make whatever order it thinks fit, not only as between the appellant and the respondent but also as between a respondent and a respondent. It empowers the appellate court not only to give or refuse relief to the appellant by allowing or dismissing the appeal but also to give such other relief to any of the respondents as 'the case may require'. In the present case, if there was no impediment in law the High Court could, therefore, though allowing the appeal of the State by dismissing the plaintiff's suits against it, give the plaintiff a decree against any or all the other defendants who were parties to the appeal as respondents. While the very words of the section make this position abundantly clear the illustration puts the position beyond argument.
xxx xxx xxx (14) ...We are not, at present advised, prepared to agree that if a party who could have filed a cross-objection under Order 41, Rule 22 of the Code of Civil Procedure has not done so, the appeal court can under no circumstance give him relief under the provisions of Order 41, Rule 33 of the Code.
11. In Sarmaniya Bai v. Madhya Pradesh Rajya Parivahan Nigam 1990 ACJ 862 (MP), following questions arose before a Full Bench of Madhya Pradesh High Court at its Gwalior Bench:
(4) Whether the Tribunal passing an award under the provisions of the Motor Vehicles Act for compensation to claimants for death or injuries lacks jurisdiction to enforce its award adopting procedure provided under Civil Procedure Code, exercising its inherent jurisdiction in that regard?
After considering the legal position it was held as under:
(23) Our conclusion, therefore, is that the law expounded by the learned single Judge of this Court in his order passed on 31.3.1989 in disposing of Civil Revision No. 134 of 1987, preferred by the appellants, is incorrect. Law was not correctly stated in taking the view that the Claims Tribunal cannot execute its own award in any other manner except in accordance with the provisions of Section 110-E of the Act. On the contrary, we are of the view that the Claims Tribunal possesses inherent jurisdiction to enforce its own award in accordance also with the provisions of Civil Procedure Code as applicable to execution of orders and decrees passed by a civil court. Accordingly, we answer the question in the affirmative.
12. To similar effect are the decisions reported in New India Assurance Co. Ltd. v. Sudesh Bhalla 1991 ACJ 225 (Allahabad); Dheeran Chinnamalai Trans. Corporation Ltd. v. Donald Vassou 2000 ACJ 1076 (Madras); Kishan Lal v. Mehndi Hasan 2001 ACJ 332 (Allahabad) and Divisional Controller now G.M., Karnataka State Road Trans. Corporation v. J.D. Sigamany 1999 ACJ 977 (Karnataka) and Prakram-chand v. Chuttan 1991 ACJ 1051 (MP).
13. A Division Bench of this Court in Manjit Singh v. Rattan Singh 1997 ACJ 1204 (HP), speaking through one of us (Arun Kumar Goel, J.), held as under:
(15) Now, the question that remains to be considered is whether the provision of Order 41, Rule 33, Civil Procedure Code is applicable to the present case and whether in exercise of such powers this Court is competent to enhance the amount of compensation awarded by the Tribunal below. In this behalf, it may be appropriate to point out that when the provisions of Sections 140 and 141 of the Motor Vehicles Act, 1988 are read together, then in that event, it has to be ensured that the amount of compensation payable in a claim petition should not be less than the amount payable under 'no fault liability'. If that is so, then this Court is competent to bring the award in accordance with law and to make any order which ought to have been passed or made and to make further or other order as the case may require and this power can be exercised by this Court in favour of all or any of the respondents although such respondents may not have filed an appeal or cross-objections. Further there is no exclusion for the exercise of powers under Order 41, Rule 33, Civil Procedure Code by this Court or under the provisions of Motor Vehicles Act, 1988 or the rules framed thereunder.
(16) When this Court is exercising its appellate jurisdiction conferred on it under a special statute, i.e., Motor Vehicles Act in the present case, then the rules of procedure and practice followed by this Court applicable to an ordinary civil appeal would govern unless, of course, there is a specific prohibition under the statute governing such appeal. Besides this, the provisions of Motor Vehicles Act are a beneficial piece of legislation for providing quick and substantial relief to the claimants, who are the victims of unfortunate accident for no fault of theirs. Further in such like circumstances, provisions of Order 41, Rule 33, Civil Procedure Code can be made applicable and being a beneficial legislation, technical meaning need not be given to the law. By giving such a meaning, the court would be acting in the direction of achieving the object of the legislation for which it has been enacted.
(17) If a pedantic or technical view is taken regarding the applicability of the provisions of Order 41, Rule 33, Civil Procedure Code then the provisions of Order 41, Rule 22, Civil Procedure Code would not be applicable to the appeals under the provisions of Motor Vehicles Act. Yet in cases where a party is unable to file the appeal and comes up in cross-objections, then in such an eventuality the appeal so filed when cross-objections are filed has to be regulated by the practice and procedure of the High Court and it is on this basis that the cross-objections under Order 41, Rule 22, Civil Procedure Code are entertained. In taking this view, we place reliance on Marijula Devi Bhuta v. Manjusri Raha 1968 ACJ 1 (MP); Phoenix Assurance Co. Ltd. v. Kalpna Rajput 1974 ACJ 470 (Assam & Nagaland); K. Chandra-shekara Naik v. Narayana 1974 ACJ 522 (Karnataka); National Insurance Co. Ltd. v. Tulsi Devi 1988 ACJ 962 (Rajasthan); Municipal Board, Mount Abu v. Had Lal 1988 ACJ 821 (Rajasthan); Sonaram v. Jaiprakash AIR 1986 MP 21; Oriental Fire & Genl. Ins. Co. Ltd. v. Rajendra Kaur 1989 ACJ 961 (Allahabad) and K. Velunni v. Premalatha 1989 ACJ 833 (Kerala). It may be reiterated here that Motor Vehicles Act, 1988 provides right of appeal under Section 173 to this Court without indicating anything of the manner in which the appeal is to be disposed of. In these circumstances what is necessarily implied is that the right of appeal will carry applicability of rules of practice and procedure of this Court with regard to its power to entertain and decide the appeal including its disposal and manner of exercise of that jurisdiction and all other incidence thereof. Needless to point out here that Order 41, Rule 33, Civil Procedure Code confers a special power on the appellate court. In the face of this position, this Court is well within its legal authority to exercise jurisdiction vested in it under Order 41, Rule 33, Civil Procedure Code and to bring the award in consonance with the provisions of the Motor Vehicles Act, 1988.
14. A Division Bench of Madras High Court in Humera Bhanu v. Cholan Roadways Corporation 1995 ACJ 325 (Madras), while considering whether a party can ask for reduction of compensation without filing cross-objections under Order 41, Rule 22, Civil Procedure Code held as under:
(13) The learned Counsel appearing for the appellants herein has contended that without filing a cross-objection, the respondent cannot canvass for reduction of the quantum of compensation awarded by the Tribunal. The learned Counsel submitted that even though the respondent can support the findings of the Tribunal, the respondent is not entitled to ask for reduction of the quantum of damages. On the other hand, learned Counsel for the respondent submitted that in view of the provisions contained in Order 41, Rule 22, Civil Procedure Code, it is open to the respondent to ask for reduction of compensation without filing a cross-objection. The learned Counsel further submitted that it is open to the court of appeal to maintain the decree appealed from the ground which had been raised but not accepted by the trial court, even though the respondent did not take any cross-objection. This contention raised by learned Counsel for the respondent is tenable in view of the following decisions in the case of Union Co-op. Insurance Society Ltd. v. Laza-rammal AIR 1974 Mad 379, in the case of Haridas Mundhra v. India Cable Co. Ltd. AIR 1965 Cal 369 and in the case of Gadden Chinna Venkata Rao v. Kor-alla Satyanarayanamurthy AIR 1943 Mad 698. Therefore, when we consider these appeals on merits we would take into consideration the arguments advanced by the learned Counsel for the respondent with regard to reduction of quantum of compensation awarded by the Tribunal.
15. Keeping in view the aforesaid decisions of Supreme Court and different High Courts including this Court , we feel that there being no prohibition in law, i.e., either under Motor Vehicles Act or under the provisions of Civil Procedure Code, this Court is not precluded from passing order which it considers just in the circumstances of a case without there being either cross-objection or cross-appeal. As such we are further of the view that Order 41, Rule 33 is fully applicable to the appeals under the Motor Vehicles Act.
16. Another argument raised on behalf of the respondents-claimants by the learned senior counsel was that interest allowed on compensation is wholly inadequate and needs to be corrected, particularly keeping in view the decisions of the Supreme Court rendered from time to time. Thus in no case interest can be less than 12 per cent per annum from the date of filing of claim petition by each one of the claimants-respondents till its payment/deposit. This plea has been seriously contested by Mr. Chandel, who pointed out that interest in fact awarded by the Tribunal is excessive and in no case should be more than 6 per cent. Alternatively, he submitted that the discretion exercised by the Tribunal below calls for no interference. Thus, according to him, the same may be reduced or in any case should not be enhanced.
17. So far matter relating to levy of interest is concerned, as per provisions of Motor Vehicles Act, 1988, Tribunal has the power to allow interest in terms of Section 171. For ready reference this section is extracted hereinbelow:
171. Award of interest where any claim is allowed.-Where any Claims Tribunal allows a claim for compensation made under this Act, such Tribunal may direct that in addition to the amount of compensation simple interest shall also be paid at such rate and from such date not earlier than the date of making the claim as it may specify in this behalf.
18. A perusal of this provision clearly authorises the Tribunal to direct that in addition to compensation simple interest shall also be paid at such rate and not earlier from the date of filing of the claim petition.
19. Matter relating to grant of interest as well as rate is no more res Integra in view of the decisions of the Apex Court, which will be referred to hereinafter.
20. In Narcinva V. Kamat v. Alfredo Antonio Doe Martins 1985 ACJ 397 (SC), interest was allowed at the rate of 12 per cent per annum from the date of accident till payment on the amount of compensation.
21. To similar effect are the decisions of Apex Court in Chameli Wati v. Delhi Municipal Corporation 1985 ACJ 645 (SC); Jagbir Singh v. General Manager, Punjab Roadways 1987 ACJ 15 (SC); Prerna v. Madhya Pradesh State Road Trans. Corporation 1993 ACJ 254 (SC); Har-deo Kaur v. Rajasthan State Road Trans. Corporation 1992 ACJ 300 (SC) and Shanti Bai v. Charan Singh 1998 ACJ 848 (SC). A number of other decisions of this Court and of other High Courts were also cited regarding rate of interest. Those are not being gone into in view of the decisions of the Supreme Court.
22. Supreme Court while considering the matter relating to levy of interest, reduced the same in the light of reduction of interest by the banks. What was observed while reducing the rate of interest which was earlier found to be reasonable to 9 per cent after lowering of interest by the nationalised banks, was as under in the case of Kaushnuma Begum v. New India Assurance Co. Ltd. 2001 ACJ 428 (SC):
(23) Now, we have to fix up the rate of interest. Section 171 of the MV Act empowers the Tribunal to direct that 'in addition to the amount of compensation simple interest shall also be paid at such rate and from such date not earlier than the date of making the claim as may be specified in this behalf. Earlier, 12 per cent was found to be the reasonable rate of simple interest. With a change in the economy and the policy of the Reserve Bank of India the interest rate has been lowered. The nationalised banks are now granting interest at the rate of 9 per cent on fixed deposits for one year. We, therefore, direct that the compensation amount fixed hereinbefore shall bear interest at the rate of 9 per cent per annum from the date of the claim made by the appellants. The amount of Rs. 50,000 paid by the insurance company under Section 140 shall be deducted from the principal amount as on the date of its payment and interest shall be recalculated on the balance amount of the principal sum from such date.
23. Thus what can safely be concluded from the above discussion is that Order 41, Rule 33 applies to the appeals arising out of the Motor Vehicles Act and in the absence of cross-objections/cross-appeals, this Court is not precluded from passing orders of course in accordance with law in a given case. Interest leviable on the compensation is to be normally at 12 per cent per annum which is liable to be reduced keeping in view the reduction by the nationalised banks.
24. Keeping in view all the facts and circumstances of these appeals, we are satisfied that these are fit cases for invoking Order 41, Rule 33, Civil Procedure Code and then assess just compensation. We are further of the view that the award in each case needs to be modified in the matter of compensation as well as payment of interest.
25. For assessing compensation under the Motor Vehicles Act, multiplier method based on unit system, as well as keeping in view his age and income is by now well accepted mode of assessing compensation by all courts including the Hon'ble Apex Court. This accepted position has been reiterated from time to time.
26. In General Manager, Kerala State Road Trans. Corporation v. Susamma Thomas 1994 ACJ 1 (SC), Apex Court observed as under:
Multiplier method is logically sound and legally well established. Method of ensuring a 'just' compensation which will make for uniformity and certainty of awards. A departure from this method can only be justified in rare and extraordinary circumstances and very exceptional cases.
In this behalf reference can also be made to the decisions in Municipal Corporation of Delhi v. Subhagwanti 1966 ACJ 57 (SC); C.K. Subramonia Iyer v. T. Kunhi Kuttan Nair 1970 ACJ 110 (SC); M.P. State Road Trans. Corporation v. Sudhakar 1977 ACJ 290 (SC) and H.P. Road Trans. Corporation v. Jai Ram 1980 ACJ 1 (HP).
27. Now each appeal will be taken up individually.
F.A.O. No. 134 of 1995:
28. In this case deceased was Satinder Singh. Claimants are Saroj Devi, widow, Ranjana Devi, major daughter, three minor sons and Sukh Ram, father of the deceased. They have been awarded compensation in the sum of Rs. 1,27,000 plus interest from the date of petition to the date of deposit of compensation with the Tribunal 1/10th of the compensation has been made payable to the father of the deceased and the remaining amount has been ordered to be shared equally by the other claimants-respondents. Income of the deceased was taken as Rs. 1,200 per month. Applying the multiplier method and keeping in view his age and after deducting two units for the deceased, dependence of the claimants when rounded off, works out to Rs. 980 per month or say Rs. 11,760 per annum. Compensation works out to Rs. 1,14,020 and to this a sum of Rs. 15,000 on account of conventional damages as well as a further sum of Rs. 15,000 on account of loss of estate, the total compensation comes to Rs. 1,44,020. So far apportionment of this amount is concerned, award passed by the Tribunal is upheld.
F.A.O. No. 141 of 1995 with Cross-Objection No. 3 of 1996:
29. In this case deceased was Dila Ram. His proved age is 35 years. His income has been taken at Rs. 1,200 per month. Claimants in this case are Narda Devi, widow and six minor children. By applying the unit system and after deducting two units for the deceased, dependence comes to Rs. 960 per month or say Rs. 11,520 per annum. Keeping in view the age of the deceased, we feel that multiplier of 15 needs to be applied in the present case. The total comes to Rs. 1,72,800. To this sum when Rs. 15,000 each is added on account of conventional damages and loss to estate, the total compensation payable works out to Rs. 2,02,800.
F.A.O. No. 111 of 1995:
30. In this case, deceased was Prem Dutt and the claimants are Sumitra Devi, widow, two minor daughters and two minor sons besides Laik Ram and Shauni Devi being the parents of the deceased. His proved age in terms of Exh. PQ/2 was 37 years. His income has been taken to be Rs. 1,200 per month. Allowing two units for the deceased, dependence comes to Rs. 1,000 per month or say Rs. 12,000 per annum. We feel that multiplier of 15 needs to be applied looking to the age of the deceased, the amount comes to Rs. 1,80,000. Again when Rs. 15,000 each is added on account of conventional damages and loss to estate, the total compensation payable comes to Rs. 2,10,000. Out of this amount, Laik Ram, father will get Rs. 10,000 and Shauni Devi, mother shall get Rs. 20,000; the remaining amount shall be apportioned between the rest of the claimants in equal shares.
F.A.O. No. 109 of 1995:
31. In this case deceased was Inder Singh. Claimants are Indra Devi, widow, minor son and daughter of deceased as well as his father Tulsi Ram. They have been awarded compensation in the sum of Rs. 3,00,000 and the amount has been, ordered to be apportioned equally amongst all four of them. Proved age of the deceased is 29 years as per Exh. PL/1. His income was found at Rs. 2,000 per month and thus the aforesaid compensation was allowed. After allowing two units for the deceased, dependence comes to Rs. 1,500 per month or say Rs. 18,000 per annum. We feel that multiplier of 18 would be just. This brings the amount to Rs. 3,24,000. By adding Rs. 15,000 each as conventional damages and loss to estate, the compensation payable works out to Rs. 3,54,000. Out of this amount Rs. 54,000 shall be paid to Tulsi Ram, father of the deceased and the remaining amount shall be apportioned by the claimants in equal shares.
F.A.O. No. 126 of 1995 with Cross-Objection No. 377 of 1996:
32. Hari Singh was the deceased in this case. His proved age as per learned Counsel was 32 years. He was working in H.P. State Electricity Board. His salary is also proved at the time of accident vide Exh. PS at Rs. 1,760 per month. Respondents have been awarded compensation in the sum of Rs. 2,65,200. Claimants in this case are Tara Devi, widow, one minor daughter and two sons besides Nettar Singh and Sita Devi being parents of the deceased. After deducting two units for the deceased, dependence of the family comes to Rs. 1,440 per month and rounded off to Rs. 1,450 or say Rs. 17,400. Multiplier of 16 would be just and proper in view of his age. This brings the amount to Rs. 2,78,400. When Rs. 15,000 each is added on account of conventional damages and loss to estate, the total compensation payable works out to Rs. 3,08,400. So far apportionment of this compensation is concerned, Nettar Singh will get Rs. 18,400, whereas mother of the deceased Sita Devi is allowed a sum of Rs. 35,000. Balance amount should be apportioned equally amongst the widow and three children of the deceased.
F.A.O. No. 123 of 1995:
33. Deceased in this case was Matloob Hussain. Claimants are Fakra Nisha, widow, six minor children besides Jinda Hussain, father and Shahida Begum, mother of the deceased. Proved age of the deceased is 27 years on the date of accident. His income has been taken by the Tribunal at Rs. 1,200 per month. By deducting two units for the deceased, dependence comes to Rs. 1,028 or say Rs. 1,030 per month. Looking to the age of the deceased, multiplier of 18 needs to be applied in this case. Compensation payable comes to Rs. 2,22,480. When a sum of Rs. 15,000 each is added to this amount on account of conventional damages and loss to estate, the total compensation payable works out to Rs. 2,52,480 or say Rs. 2,52,500. Out of this amount father of deceased would get Rs. 15,000, mother Shahida Begum will get Rs. 20,000 and the remaining amount shall be apportioned amongst respondents-claimant Nos. 1 to 7 in equal shares.
F.A.O. No. 163 of 1995:
34. In this case deceased was Sohan Singh. Claimants are his two major sons, two major unmarried daughters, one minor son, one minor daughter, widow and the mother of the deceased. His proved age is 50 years. Annual income has also been established at Rs. 52,000, or say Rs. 4,333 per month. By deducting two units, the dependence works out to Rs. 3,793 or say Rs. 3,800 per month. Applying the multiplier of 6 keeping in view the age of the deceased, the compensation works out to Rs. 2,73,600 (Rs. 3,800 x 12 x 6). When a sum of Rs. 15,000 is added to this amount on account of conventional damages and loss to the estate, the total compensation payable comes to Rs. 3,03,600. Out of this amount a sum of Rs. 33,600 will be payable to Shanti Devi, mother of deceased and the remaining amount shall be apportioned amongst all the other respondents-claimants equally.
35. So for plea of Mr. Chandel that the accident was not caused due to rash or negligent driving on the part of the driver is concerned, it cannot be accepted for the simple reason that there is overwhelming evidence of the persons who were travelling in the bus in question being PWs 3, 4, 5 and 6 and number of other witnesses examined in this behalf.
36. In addition to this if the mechanical failure was sudden, then it was incumbent upon the H.R.T.C. to have produced maintenance record of the bus in question with a view to demonstrate that so far it was concerned as an owner, it had taken due care and caution by maintaining the bus as was expected of it. There is no such evidence.
37. Reliance was placed by Mr. Chandel with a view to support this plea on the statement of RW 1. In his examination-in-chief he says that at the spot there was a curve. With a view to take a turn, he applied the brakes, but it did not function. Bus got to one side of the road. Retaining wall sagged and the bus went down the road. It was in second gear prior to it. This is fifth accident on the spot. In the cross-examination he has stated that on the date of accident he was unwell and was unable to drive the vehicle. He complained about this fact at Dadahu and Jhamta to the Adda Incharge, therefore, was unable to drive the vehicle. Due to this state of his health, he stopped the vehicle at two/three places. He was forced to drive the vehicle. This is something new he has stated in the witness-box. In the face of this position plea that the accident was caused due to sudden mechanical failure cannot be accepted. We may observe here at the risk of repetition that if the accident was due to some latent defect, it had to be established from the contemporaneous official record of maintenance of the vehicle that all possible care had in fact been taken by the appellant Corporation, so far maintenance of vehicle was concerned. There is nothing on record to that effect.
38. We have modified the award even in cases where cross-objections have not been filed. This has been done in the face of the view that we have taken that Order 41, Rule 33, applies to the appeals under Motor Vehicles Act on the basis of precedents referred to herein above. We also allow interest on the amount as ordered in these appeals at the rate of 12 per cent instead of 10 per cent as allowed by the Tribunal below from the date of filing of claim petition in each case till the deposit of the amount. Interest at this rate shall be payable up to 31.12.2000 and thereafter it shall be payable at the rate of 9 per cent in the light of the decision of the Supreme Court in Kaushnuma Begum v. New India Assurance Co. Ltd. 2001 ACJ 428 (SC). The amount awarded in terms of this judgment is inclusive of any compensation deposited/paid under Section 140 of the Motor Vehicles Act, 1988. Apportionment as ordered shall be effected by the Tribunal below and in case any amount has been either released by the Tribunal or under orders of this Court , the same shall be accounted for and, if necessary, the learned Tribunal below shall ensure that concerned claimant/respondent deposits back such excess amount in terms of this judgment with it and thereafter it is redistributed. So far share of the minors is concerned, wherever it is lying it shall not be released in any of the appeals unless permitted by this Court .
39. No other point is urged.
40. In view of the aforesaid discussion, appeals of the H.R.T.C. except F.A.O. (MVA) No. 163 of 1995, are dismissed and cross-objections are disposed of in the aforesaid terms while modifying the award in each of the aforesaid appeals with no order as to costs. F.A.O. No. 163 of 1995 is partly allowed. Registry is directed to place authenticated copies of this judgment on the files of F.A.O. Nos. 141, 111, 109, 126, 123 and 163 of 1995.